Trial Court Renders Split Decision to Kelvin Cochran And Atlanta

The trial judge in the case of former Atlanta Fire Chief Kelvin Cochran handed down her long-awaited ruling this week, and it was a split decision. Chief Cochran was terminated in 2014 after he published a religious-themed book in conjunction with his ministry that many considered to be offensive to the LGBT community.

To summarize the ruling in a nutshell:

  • The city’s requirement that city employees get permission to publish books before hand (which Chief Cochran was accused of violating and was a basis for his discipline) is unconstitutional as a prior restraint. Chief Cochran wins.
  • However, because the content of the book potentially opened the city to liability for hostile work environment claims, the city was justified in terminating his employment. City Wins.
  • The parties have 30 days to submit final arguments in preparation for a decision on damages, etc.

For those with little time or interest in the First Amendment, thank you for reading beyond the headlines. You are dismissed!!! Best wishes for a Merry Christmas!!!

For the Legal Eagles – this one is complicated. Let me start by saying that having read Chief Cochran’s book – I do not see how any objective person could consider what he wrote to be offensive. It is literally a series of quotations from the Bible. If Chief Cochrane’s book is offensive to someone, then no doubt the Bible is offensive as well, because the book is little more than a series of direct quotations intended to be used in some sort a Bible Study program for men. Apart from the quotations, it emphasizes the importance of extending compassion, empathy, and forgiveness to every person. Without naming names… there are some other Bible-like books out there from other religions that talk in much more hateful terms than the Bible. I cannot help but think that had a fire chief who subscribes to another religion quoted from such a religious text, it would have put an entirely different wrinkle on this case.

That being said, lets get to the decision, which starts with a somewhat lengthy review of the facts.

  • In late 2013, Plaintiff wrote and self-published a book entitled “Who Told You That You Were Naked?: Overcoming the Stronghold of Condemnation.”
  • Plaintiff’s book was inspired by a men’s Bible study at Plaintiff’s church, which included a unit on God’s question to Adam, “Who told you that you were naked?”
  • Plaintiff’s book was written primarily for Christian men and is intended to help them fulfill God’s purpose for their lives.
  • According to Plaintiff, one of the book’s goals is to guide men to live faith-filled, virtuous lives.
  • The book includes passages indicating that sex was created for procreation and marital pleasure in holy matrimony, and that sex outside of the confines of marriage between a man and woman—including fornication, homosexual acts, and all other types of non-marital sex—is contrary to God’s will.
  • The City maintains three pre-clearance rules which require the AFRD Chief to seek permission from the Board of Ethics and his or her supervisors prior to beginning any outside employment (hereinafter, “Pre-Clearance Rules”).
  • Plaintiff never sought or received permission from the Board of Ethics to sell his book, and he never discussed his plan to sell his book with either of his supervisors, Mayor Reed or Chief Operating Officer Michael Geisler.
  • However, on October 31, 2012, Plaintiff called Nina Hickson, the City of Atlanta Ethics Officer, for advice about a “non-city-related” book he was authoring.
  • It is disputed what was said during this conversation, including whether Plaintiff discussed the book’s subject matter or if Hickson indicated Plaintiff would need Board of Ethics approval for such a book.
  • In early 2014, after the book was published, Plaintiff provided book copies to between 9 and 12 of his Christian subordinates at the AFRD, all of whom were either: (1) close personal friends who asked for a copy before it was finished; (2) employees who asked about the book once they learned of its publication; or (3) men who Plaintiff gave an unsolicited copy of the book.
  • In November 2014, Assistant Chief Wessels—one of Plaintiff’s subordinates and one of the individuals who had received a copy of the book from Plaintiff during a work event—brought Plaintiff’s book to the attention of Stephen Borders, the President of the local firefighter’s union.
  • Wessels had received the book in June or July 2014, but had only just read it. Wessels told Borders that some passages were disturbing to him—especially because Plaintiff referred to himself as the Fire Chief in the book.
  • Borders then ordered copies of the book online to review himself and, following that review, took a copy of the book to Councilmember Alex Wan to seek his advice about how the City should handle the book.
  • [Councilmember Wan then provided a copy of the book to City of Atlanta Human Resources Commissioner Yvonne Yancy]. She was concerned that Plaintiff had not received City permission to write the book, despite referring to himself as Fire Chief. And she thought the content of the book could implicate Title VII and other local laws, specifically with regard to gender and sexual orientation discrimination.
  • Yancy then took the book to Mayor Reed, who read it. He testified that he did not agree with—and was offended by—many of the comments that were insensitive to women and the LGBT and Jewish communities.
  • Yancy eventually concluded that, based upon the beliefs espoused in the book and Plaintiff’s connection of the book to his position, a Title VII investigation would need to occur to determine if Plaintiff’s views affected his departmental leadership.
  • Mayor Reed instructed Yancy to investigate whether Plaintiff had received Board of Ethics approval and to forward her concerns to City Attorney Cathy Hampton
  • On November 24, 2014, a meeting was held in Yancy’s Office with Plaintiff, Yancy, Chief of Staff Candace Byrd, and Law Department representative Robert Godfrey present.
  • Plaintiff was suspended for 30 days without pay, told the City would investigate the matter, and advised that he would need to attend sensitivity training.
  • It is disputed, however, what Plaintiff was told regarding what he could say publicly regarding his suspension: the City contends it told him not to comment publicly at all, but Plaintiff contends he was only told not to conduct media interviews.
  • At the meeting, the City expressed concerns with the content of Plaintiff’s book and that he had not complied with City policy to obtain permission from the Board of Ethics and Mayor about the book prior to writing and publishing it.
  • Yancy recommended terminating Plaintiff, but Mayor Reed instead elected to impose a 30 day suspension.
  • In a statement issued November 24, 2014, Mayor Reed stated “I profoundly disagree with and am deeply disturbed by the sentiments expressed in the paperback regarding the LGBT community,” and “the material in Chief Cochran’s book is not representative of my personal beliefs, and is inconsistent with the Administration’s work to make Atlanta a more welcoming city for all of her citizens—regardless of their sexual orientation, gender, race and religious beliefs.”
  • Mayor Reed’s Facebook page stated that “[t]he contents of the book do not reflect the views of Mayor Reed or the Administration.”
  • During his suspension, Plaintiff interacted with many members of the public regarding his situation. Plaintiff exchanged emails with two members of the public in which he described his situation as a time of “spiritual warfare” and stated that he was “grateful for this divine opportunity to suffer this for Christ and rejoicing every day.”
  • Plaintiff also provided his testimony at the Georgia Baptist Convention’s executive committee meeting, a group of 200 pastors.
  • The GBC later: published a web-based editorial criticizing Plaintiff’s suspension; created an online petition linked to a forum through which Plaintiff’s book could be purchased; instituted a social media campaign to pressure the Mayor to reinstitute Plaintiff; and, posted Plaintiff’s testimony to its website.
  • Another Christian fire chief from Virginia, Ed Elliot, also began a social media campaign that called on the Mayor to reinstitute Plaintiff.
  • During Plaintiff’s suspension, Mayor Reed received thousands of angry emails. Mayor Reed also received phone calls to his home in which he was called a racial slur, the Anti-Christ, and a terrorist. Some calls even included death threats.
  • The City contends it initially intended to bring Cochran back to work after his suspension, assuming the Title VII investigation revealed that Plaintiff had not discriminated against anyone because of the views expressed in his book.
  • The Title VII investigation by the Law Department concluded that “[n]o interviewed witness could point to a specific instance in which any member of the organization has been treated unfairly by Chief Cochran on the basis of his religious beliefs.”
  • But it also concluded that Plaintiff had not obtained the Board of Ethics’s approval in violation of Section 2-280(d) of the City’s Ethics Code.
  • And that “[t]here . . . is general agreement the contents of the book have eroded trust and have compromised the ability of the chief to provide leadership in the future.
  • On January 6, 2015, the day Plaintiff’s unpaid suspension ended, the City fired Plaintiff.
  • Why is hotly disputed. Plaintiff contends he was fired because of the book’s content.
  • The City contends he was fired because (1) he did not comply with the Pre-Clearance Rules; and (2) he refused to comply with the directive not to comment publicly on his suspension, instead instituting a firestorm and “falsely perpetuating the narrative that [Plaintiff] was being punished for his religious beliefs, and encourag[ing] and facilitat[ing] a massive PR campaign against the Mayor personally.”
  • Plaintiff subsequently filed suit against the City and Mayor Reed. Following the Court’s rulings on Defendants’ Motion to Dismiss, Plaintiff now asserts the following claims under 42 U.S.C. § 1983 against the City of Atlanta and Mayor Reed for violation of his constitutional rights: First Amendment free speech and freedom of association retaliation; unlawful prior restraint and unbridled discretion in violation of the First Amendment; violation of the First Amendment right to the free exercise of religion and the no religious tests clause of article VI, cl. 3 of the Constitution; and, violation of the Fourteenth Amendment right to procedural due process. Defendants move for summary judgment on all of Plaintiff’s claims, and Plaintiff moves for summary judgment on all of his claims except those grounded in the free exercise and freedom of association clauses of the First Amendment.
  • Plaintiff has brought three First Amendment claims which ultimately go to his alleged speech-based firing: (1) free speech retaliation; (2) freedom of association retaliation; and (3) viewpoint discrimination.
  • Plaintiff has also brought claims which contend that the City’s Pre-Clearance Rules are unconstitutional because they are: (1) a prior restraint; (2) an exercise of unbridled discretion; and (3) a violation of the First Amendment free exercise of religion clause and the no religious tests clause of article VI, cl. 3 of the Constitution.
  • Additionally, Plaintiff contends that Defendants fired him in violation of the procedural due process clause of the Fourteenth Amendment.
  • Plaintiff first claims the City terminated him in retaliation for exercising his First Amendment right to free speech.
  • The City disagrees and argues that Plaintiff’s claims fail because (1) the City’s interest as an employer outweighed the Plaintiff’s interest as a citizen; and (2) Plaintiff was not fired because of his book.
  • A public employer may not terminate a public employee in retaliation for speech protected by the First Amendment.
  • Although a citizen “must accept certain limitations on [her] freedom[s] upon entering government service, she does not relinquish the First Amendment rights [she] would otherwise enjoy as [a citizen] to comment on matters of public interest.”
  • Therefore, the goal is to “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [City], as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
  • Because it is admitted that Plaintiff’s book addressed a matter of public concern, Pickering requires the Court to balance Plaintiff’s First Amendment interests against the City’s interest “in promoting the efficiency of the public services it performs through its employees.”
  • “A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.”.
  • The Supreme Court instructs that this is a decision to be made by the Court rather than a jury.
  • The district court’s “pertinent considerations [include] whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.”
  • Taking the facts most favorable to Plaintiff, the Court finds that the Pickering balance weighs in favor of the City.
  • Although Plaintiff contends that the book was addressed to Christian men, the book was disseminated by a supervisor at the workplace—as opposed to completely off-campus—and was even distributed unsolicited to at least three individuals.
  • At least one such employee felt the subject matter of the book was sufficiently concerning such that he gave the book to the union President, and the union President then disseminated it more broadly to City officials.
  • The potential Title VII implications that Plaintiff’s speech caused are also strong factors in the City’s favor.
  • The City was concerned that Plaintiff’s book had exposed the City to hostile work environment liability if Plaintiff had treated subordinates differently based upon the views he had expressed in the book.
  • The Court also finds that Plaintiff’s status as the Fire Chief—and thus the head of a safety agency—also favors the City.
  • Because Plaintiff expressed his opinion that the death of all individuals who engage in homosexual and extramarital sex would be celebrated, it was not unreasonable for the City to fear public erosion of trust in the Fire Department.
  • The Court could foresee individuals who might contend their fire department response time was not sufficient because of their sexual orientation or otherwise, regardless of the veracity of that claim.
  • Nor was it unreasonable to fear that Plaintiff’s employees—who are required to risk their lives daily—would be unwilling or unable to rely on Plaintiff’s leadership given his views about them.
  • As the Eleventh Circuit has acknowledged, there is “a heightened need for order, loyalty, and harmony in a quasi-military organization such as a police or fire department.”
  • The Court also finds that the actual disruption in this matter, and the context in which it arose, support the City’s firing decision.
  • Plaintiff’s book was brought to the City’s attention in late 2014 when LGBT rights, and specifically gay marriage, were hotly debated in anticipation of the Supreme Court’s consideration of Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
  • It is undisputed that Plaintiff “accepted support” of a social media campaign aimed at reversing his suspension which led to Mayor Reed receiving thousands of emails, both for and against Plaintiff’s suspension.
  • Mayor Reed also received phone calls to his home in which he was called a racial slur, the Anti-Christ, and a terrorist.
  • Some calls even included death threats..
  • In balancing all of the Pickering factors, Plaintiff’s speech caused such an actual and possible disruption that it does not warrant First Amendment protection in the workplace, based upon Supreme Court and Eleventh Circuit
  • Challenges to the City’s Pre-Clearance Policies: The City also moves for summary judgment on all of Plaintiff’s challenges to its Pre-Clearance Rules, and Plaintiff has moved for summary judgment on all of his challenges to the Pre-Clearance Rules except those grounded in the freedom of association and free exercise of religion clauses.
  • The Court will address Plaintiff’s challenges to the Pre-Clearance Rules in the following order: (1) prior restraint; (2) unbridled discretion; and (3) free exercise and no religious test claims.
  • The Supreme Court first set out the test it would use in evaluating such claims: “[w]hen a court is required to determine the validity of such a restraint, it must ‘arrive at a balance between the interests of the [employee], of a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’
  • The Supreme Court further clarified that when courts review a ban that “chills potential speech before it happens,” as opposed to a post-hoc review of an “adverse action taken in response to actual speech,” “[t]he Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government.”
  • (“[T]he Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification ‘far stronger than mere speculation’ in regulating it.”
  • The interest of Plaintiff and all other prospective speakers under this policy is the ability to engage in any private employment—including speaking or writing on any subject—without prior approval by the City.
  • The City diminishes this interest by contending that the Pre-Clearance Rules do not “specifically target[] expressive activities, let alone protected public speech.”
  • It contends that “[e]mployees remain free to speak, write, or otherwise express whatever they choose without seeking approval pursuant to these provisions so long as they do not receive compensation for doing so.”
  • But the Supreme Court has already rejected this argument
  • [T]he Court must also weigh not only interests of “present and future employees in a broad range of present and future expression” but also the interests of “potential audiences.”
  • “This interest is manifestly great; as numerous courts and commentators have observed, government employees are in a position to offer the public unique insights into the workings of government generally and their areas of specialization in particular.”
  • Thus, the Court finds this interest weighs heavily.
  • [T]he Court must also identify the government’s efficiency interest in its Pre-Clearance Rules.
  • The City contends its Pre-Clearance Rules “allow the City to ensure that its employees do not have conflicts of interest or otherwise engage in outside activities that could improperly influence or interfere with their official City duties (or even appear to).”
  • Other than this conclusory statement, the City provides no support for its Pre-Clearance Rules.
  • The City thus fails with respect to its burden because it has not even attempted to produce any evidence for the Court to weigh in evaluating its side of the equation outside of the policy’s stated purpose (which does not include any specific factual findings).
  • In lieu of presenting evidence which supports its contention that the Rules are necessary to prevent outside employment conflicts of interest, the City points the Court to other courts that have upheld similar bans.
  • But those cases cannot save the City.
  • Essentially, then, the Court is left with mere assertions by the City that there is a wrong to be cured.
  • But the Supreme Court has said that is not enough. The City’s interest as presented is thus relatively weak.
  • The Court finds that the balance weighs in the potential speaker and audience’s favor.
  • The Court finds that these Pre-Clearance Rules are not properly tailored in light of Defendants’ stated rationale that the policy’s aim is to prevent conflicts of interest.
  • And the Rules are also overinclusive.
  • Plaintiff additionally claims that the Pre-Clearance Policies are unconstitutional as content-based restrictions in that they grant unbridled discretion to the City to approve or deny outside employment requests.
  • “The infirmity flowing from ‘unbridled discretion’ is that it allows the government official to reject or limit [] application[s] based on improper content based considerations.”
  • To determine unbridled discretion, the Eleventh Circuit first instructs courts to look to the “purpose behind the regulation.”
  • “And, ‘[a]s a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.’”
  • “To avoid unbridled discretion, the permit requirements should contain narrowly drawn, reasonable, and definite standards to guide the official’s decision.”
  • Taking the facts most favorable to Defendant, the Court finds that the City’s Pre-Clearance Rules invite unbridled discretion.
  • Plaintiff contends that by disciplining Plaintiff pursuant to the Pre-Clearance Rules, Defendants violated his right to freely exercise his religion because the City targeted his expression of sincerely held religious beliefs regarding marriage and sexuality.
  • The free exercise clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend I.
  • “In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”
  • The Court finds that the Pre-Clearance Rules are neutral and generally applicable. They apply to all employees and all outside employment. The Rules do not address religion and were not passed because of religious motivations.
  • Rather, the Rules’ purpose is to prevent conflicts of interest and the appearance of impropriety, which is a legitimate government interest the Rules are designed to prevent.
  • Plaintiff additionally argues that the Pre-Clearance Rules set out a “religious test” in violation of the Constitution.
  • But this argument misses the mark. As stated above, the Pre-Clearance Rules are generally applicable.
  • Plaintiff is not required to maintain a specific religion in order to receive permission for outside employment.
  • Plaintiff claims the City and Mayor Reed in his individual capacity violated his right to procedural due process by suspending and terminating him without providing him advance notice of an adverse employment action or giving him a meaningful opportunity to respond, as required by City Ordinances.
  • Defendants in return argue that Plaintiff was not entitled to any procedure because under the City’s Charter—regardless of what the City Code states—he was an at-will public employee with no property interest protected by the due process clause.
  • Under Georgia law, “a public employee has a property interest in employment when that employee can be fired only for cause.”
  • However, absent “a contractual or statutory ‘for cause’ requirement,” the employee may be terminated at any time, for any reason.
  • Plaintiff contends that he has a property interest in his employment because City Ordinance Section 114-52817 provides that no employee may be terminated or otherwise adversely affected except for cause.
  • Defendants argue that notwithstanding those provisions, the City Charter provides that Plaintiff’s position is at will. And given a conflict between the Charter and the Code, the Charter controls under Georgia law.
  • Defendant is correct under Georgia law. Because the Charter plainly states that a department head may be removed with or without cause, Plaintiff does not have a property interest in his employment. Plaintiff therefore cannot mount a procedural due process claim.
  • Conclusion
  • Defendants City of Atlanta, Georgia and Mayor Kasim Reed’s Motion for Summary Judgment is GRANTED as to Plaintiff’s claims of First Amendment free speech retaliation; First Amendment freedom of association retaliation; viewpoint discrimination; violation of the First Amendment right to the free exercise of religion and the no religious tests clause of article VI, cl. 3 of the Constitution; and, violation of Fourteenth Amendment procedural due process but DENIED as to Plaintiff’s First Amendment prior restraint and unbridled discretion claims.
  • Plaintiff’s Motion for Partial Summary Judgment is DENIED as to Plaintiff’s claims of First Amendment free speech retaliation; First Amendment freedom of association retaliation; viewpoint discrimination; violation of the First Amendment right to the free exercise of religion and the No Religious Tests clause of Article VI, ¶ 3 of the Constitution; and, violation of Fourteenth Amendment procedural due process claims and GRANTED as to Plaintiff’s First
  • Amendment prior restraint and unbridled discretion claims.
  • The parties are DIRECTED to file a Pre-Trial Order within 30 days of this Order. This Pre-Trial Order should clearly present the issues the parties contend remain given this Order.

Here is a copy of the ruling: 2017 12 20 RULING

What remains are two big questions:

  1. What will the court order to remedy the prior restraint violations that the city committed? Reinstatement at this point appears unlikely but there could be some damages awarded along with attorneys fees.
  2. Now that both parties have won and lost, will they finally be willing to reach a settlement or will this case go first to the 11th Circuit and then on to the US Supreme Court?

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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